Tuesday, December 06, 2011

The Academy Strikes Back

By Mike Dorf

Yesterday's NY Times contained a letter from Yale Law Professor Bruce Ackerman criticizing the Times's misbegotten crusade to convert law schools into trade schools (previously discussed by me here and here, and by Professor Buchanan here and here). Ackerman criticizes the Times for opining that law is merely "a means rather than an end, a tool for solving problems." On "the contrary," Ackerman writes, "law also helps define our fundamental problems." Because "[m]any law students will become our future leaders," Ackerman argues that they must be educated in the case method as well as the sort of "social science and philosophy" that have purchase on such first-order tasks, rather than merely being taught how and where to file a piece of paper, as the Times reportage suggests.

I largely agree with Ackerman but I can anticipate a possible response: Perhaps graduates of Yale and some other elite law schools will become our future leaders, but most lawyers want to learn a trade. After all, Yale is not among the schools now being sued for fraud. Perhaps students who are certain or nearly certain to obtain well-paying jobs as lawyers after graduation don't mind paying the premium for learning how to define problems as future leaders, but those with less certain job prospects want a leaner education that prepares them to hit the ground running at lower cost.

Is that an effective rejoinder? Not really. It strikes me as more of a non sequitur, as I shall explain.

For one thing, lawyers from non-elite law schools in fact end up among our nation's leaders. Vice President Joe Biden attended Syracuse Law School (ranked in a tie for the 100th slot by US News). The late Chief Justice Warren Burger went to night school at what is now the William Mitchell College of Law (ranked 135). Congresswoman and Presidential candidate Michele Bachmann attended the O.W. Coburn School of Law, then affiliated with Oral Roberts University and now defunct. Some of its faculty were absorbed by what is now Regent Law School, which does not have a publicly available US News ranking.

I'm not invoking the dreaded US News rankings as an accurate assessment of educational quality. Quite the contrary. Take Syracuse, which is just up the road from Ithaca, and has some first-rate programs and faculty. The larger university also has some very good departments, including political science. Given how many really good faculty there are at relatively less prestigious law schools, it is now possible for a student to get a terrific education of the sort that Ackerman envisions virtually anywhere. It's also undeniable that in the current economic climate, graduates of Syracuse, William Mitchell, Regent, and a host of other law schools, including just about all higher ranked schools, are finding it harder to find good jobs (or in too many cases, any law jobs) than graduates did five years ago.

But if the problem is that U.S. law schools are graduating more lawyers than the economy can absorb, then the solution would seem to be to graduate fewer, regardless of how and what we teach. I suppose one could say that if law schools de-intellectualized legal education in the way that the editors of the NY Times favor, then law school would be cheaper, and so prospective students would be taking less of a gamble in attending law school in the first place, because if they end up not getting jobs they'd only be out $75,000 instead of $150,000 (or whatever the numbers are). Yet this is hardly a solution to the problem of too many lawyers chasing too few jobs. That is why I said that the hypothetical response to Ackerman is something of a non sequitur.

To my mind, there are two sets of independent questions. One is what and how law schools should teach. I think the answer is rather straightforward. We should offer some mix of: traditional "thinking like a lawyer"; skills and experiential learning; and insights gleaned from related disciplines like economics, political science, and history. The challenge, as Ackerman notes, is integrating education across these dimensions, but pending the solution to that problem, offering separate courses in each of these areas is a pretty good stopgap, and it is more or less what law schools have been doing for the last 20 years or so.

The second set of questions concerns the job market. Will the number of good law jobs eventually recover to pre-Great-Recession levels? I have seen plausible analyses that say yes as well as analyses that say no. It is almost certainly too soon to tell. As I said above, the answer to this question should affect the number of lawyers we produce each year. Reduced incomes for lawyers would probably also translate into reduced resources for law schools, which could affect both what law schools teach and, in the long run, how they staff their classes. But, to repeat a point I made in my earlier intervention on this subject, that would be an unfortunate cost to legal education, not an improvement.

In other words, it may be that the day will come when we can no longer afford to offer the sort of legal education that we really ought to be giving to our future leaders and indeed, to all lawyers. Already the liberal arts are suffering very badly in many American universities, which is a great shame.

The mystery in all of this is why the editors of the NY Times have this issue so backwards. The best I can do is venture a psychological hypothesis. With journalism having already been decimated by the double whammy of the digital revolution and the Great Recession, the Times editors look upon the legal academy with schadenfreude, wishing a similar fate for us.

9 comments:

If we had $75k legal education then we would have more lawyers and legal rates would be cheaper (at the bottom end). This would be great news for the vast majority of people who are priced out of access to courts to right injustices.

Who decides? The market is pushing back against the current model. The corporate GC clients don't want to pay for it. The natural person clients have no use for recent grads. The judges have long complained about it. The law firms want a different mix. Most of all, the students taking on all the debt want a different mix.

In response, some profs tell us that the mode of legal education that is most interesting (and quite remunerative) to them happens to be what's best for the rest of us. Forgive us if we don't agree.

And as for whether legal education at Yale should be different than at, say, the 150th ranked school, who could possibly deny that it should be? The market, the judges, the firms, and the clients are looking for different things from those two pools. How could that difference not warrant a different educational approach?

Given that the cost of legal education has been ratcheted up and the financial rewards have been ratcheted down, we're just asking for some increased attentiveness to the value add being offered to students taking on the debt.

Why not train lawyers through the English/Canadian model? One gets the proper academic/intellectual training along with the essence of practical/professional training. Pupillage followed by licensing examination would weed out the dilettantes from the serious. It works more or less this way for the American medical education system (med school/residency/certification) and for professional engineering worldwide. No-one accuses American medicine and engineering of being excessively "vocational."

I would like to echo what Bob Brandon wrote -- I have long felt that the US needs a two-track model for legal education. We do not have the barrister/solicitor structure of the legal profession that exists in England, so that model is not necessarily apposite, yet we do very much have two (at least) types of lawyers in law school, future practitioners and future scholars/theorists. There can and will always be overlap, of course, but why can we not have a practical track of legal education for those who simply want to get out and practice law -- I envision a four semester curriculum -- the core first year courses and then a semester or two of clinical education. This would be followed by a two-three year apprenticeship, and then one may join the bar. The other track could be a more intensive, legal theory, track. Three years of wider-ranging legal education. Two different degrees could be earned -- the first a JD, and make the second an LLM. And I would also abolish the bar exam -- or make them optional. Legal education does need to be remodelled -- we forget how relatively recent an invention our current way of making lawyers is.

I'm not impressed by Ackerman's notion that law school's value in educating future leaders lies in the law's (and by extension in Ackerman's logic, law schools') ability to address questions such as: "What is the meaning of free speech or equal protection? Does antitrust law make sense? What is the best form of environmental regulation?" I question the validity of two (somewhat contradictory) underlying assumptions in this statement: (1) that without law school our future leaders wouldn't think about these things, and (2)that our current legally-educated do much thinking about these kinds of things anyway. There is perhaps a more tentative and kind of obnoxious (3) as well: law school is the only way to get future leaders to think about these things. Since when did law schools become the Lorax?

What is more likely is that a majority of law students are, painting with a broad brush, careerist and not particularly intellectually curious, and a minority who are more curious and intellectually driven (readily identified in the law school classroom by the fact that they are not reading Us Weekly on the internet). Neither does success in law school consistently attach to the former group at the expense of the latter as success at a short exam on applying law to fact correlate particularly well with intellectual engagement (and however hard a minority of professors try to find better ways to rank their students, this is still the majority mode of evaluation).

What puzzles me more here, though, is the reluctance of law professors to admit that there’s no inconsistency in saying both that law schools (broadly speaking) currently stand in an unconscionable position with respect to their students and that there is value in traditional legal scholarship and the case method. The consensus seems to be that if the latter is true, the former must not be, despite the mounting evidence that even pretty good law schools are visiting financial ruin on a sizeable percentage of their students to maintain the status quo. I can’t help but detect this attitude both in Ackerman’s response and postings on, you know, those other law blogs.

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